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ANTHONY IRON & METAL CO. v. COMMONWEALTH PENNSYLVANIA (09/15/87)

decided: September 15, 1987.

ANTHONY IRON & METAL CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeal from the order of the Commonwealth of Pennsylvania, Department of Transportation in case of In Re: Suspension of Special Hauling Privileges of Fayette Trucking, Inc. and Anthony Iron & Metal Co., No. 014 A.D. 1985.

COUNSEL

William Gleason Barbin, with him, Andrew J. Gleason, Gleason, DiFrancesco, Shahade & Markovitz, for petitioner.

Stephen F. J. Martin, Assistant Counsel, with him, Robert H. Raymond, Jr., Assistant Chief Counsel, Henry G. Barr, General Counsel, Spencer A. Manthorpe, Chief Counsel, for respondent.

Judges Doyle and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 109 Pa. Commw. Page 348]

Anthony Iron and Metal Company (Petitioner) appeals from an order of the Pennsylvania Department of Transportation (DOT) which suspended Petitioner's special hauling privileges for a period of thirty days. We affirm.

Petitioner is a company engaged in the business of purchasing heavy construction equipment and leasing out the equipment either fully manned and permitted or in a "bare posture", that is, without permit or operator. In the course of its business, Petitioner often has occasion to apply for special permits from DOT for the privilege of hauling overweight or oversize loads on state highways.

[ 109 Pa. Commw. Page 349]

Fayette Trucking Company (Fayette) is a corporation engaged in the business of hauling heavy equipment. On January 3, 1984, DOT ordered Fayette's special hauling privileges suspended for a period of ninety days for knowingly altering a permit. Fayette appealed, and on March 28, 1985, in an unpublished opinion, this Court affirmed DOT's order. Fayette Trucking, Inc. v. Pennsylvania Department of Transportation, (No. 310 C.D. 1984, filed March 28, 1985). The suspension went into effect on May 6, 1985.

On June 7, 1985, one month later, Fayette entered into a sale/lease-back arrangement with Petitioner whereby Petitioner bought six of Fayette's heavy trucks and then immediately leased them back to Fayette.

On June 21, 1985, DOT issued special hauling permit No. 684234 to Petitioner for a truck bearing registration (tag) number 94618CG. Three days later, on June 24, 1985, a state police officer stopped a vehicle owned and operated by Fayette which was carrying an overweight load. The truck, which had an assigned registration (tag) number 86737CG, instead bore registration number 94618CG and displayed special hauling permit No. 684234, the permit previously issued to Petitioner.

On October 18, 1985, following the presentation to the Secretary of Transportation of a petition for order to show cause, the Secretary issued an order to Petitioner and Fayette to show cause why the special hauling privileges of each should not be suspended. After recounting the facts concerning the sale/lease-back arrangement and the incident whereby a Fayette truck displayed a permit and registration issued to Petitioner, the petition alleged that "Anthony was involved in the improper use of special hauling permits for the movement of a vehicle under suspension by the Department, all in violation of Sections 179.3, 179.8, 197.9

[ 109 Pa. Commw. Page 350]

[sic] and 179.10 of Chapter 179 of department regulations (Oversize and Overweight ...


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